There is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information and belief. This requirement is often ignored, or there is some vague and general wording of knowledge. Ignoring, and respecting, this requirement is dangerous. For instance there have been several cases where the courts have criticised solicitors for giving evidence in witness statements of matters they simply could not know. The dangers of not considering this issue fully are highlighted in the judgment yesterday of Akhlaq Choudry QC (sitting as a Deputy High Court Judge) in Gamatronic (UK) Limited -v- Hamilton  EWHC 2225 (QB).
The claimants were alleging numerous breaches of fiduciary and contractual duties by defendants in their roles as directors and employees. The judge considered the witness evidence called by the claimants.
THE WITNESS WHO SAID THINGS SHE DID NOT KNOW
The evidence of Ms West, by contrast, was far from satisfactory. There are several reasons why I came to that view. I mention just three here although I will refer to others in due course. First, although it was no part of her responsibility to process expense claims she sought to suggest that the Defendants had regularly claimed home to work mileage. When pressed as to the source of her information, it was apparent that Ms West had no direct knowledge of the expense claims and was relying upon no more than a few unclear snippets of conversations with others. She could give no satisfactory explanation as to why these matters would even have been mentioned to her. Second, in her statement she sought to give evidence as to the Defendants’ attendance at the office and that this had declined from 2010 onwards. She said:
My experience of being managed by Mr Hamilton between 2008 and 2010 was that he was generally in the office at around 8.00am and left at around 6.00 to 6.30pm every day of the working week.
However, Ms West conceded that Mr Hamilton would spend a considerable amount of time out of the office each week and that her statement could only have been referring to the days when he was in the office. Her statement also states that she generally left the office between 4 and 5pm. She was not therefore in any position to say when Mr Hamilton left the office each day if it was after that time. She also sought to give evidence as to meetings between the Defendants and Mr Ward and Mr Flynn during October and November 2011. It was surprising that she felt able to give the evidence that she did about such meetings when, on her own evidence, she left at around the time such meetings started. Finally, Ms West gave evidence which was clearly meant to imply that Ms Mansfield had deliberately burned company documents including expenses receipts and claim forms.
The witness said that expense receipts were missing and documents had been burnt.
However, the falsity of that claim, namely that the expenses folder relating to the Defendants was missing, was exposed on the final day of the trial when the Claimants disclosed a substantial quantity of the Defendants’ expense claim forms. Of course it may be that Ms West was led to believe what she did about the expense forms being missing from what she was told by Mr Malinsky. However, that was not made clear in her statement, and the impression she gave in her statement is that this was something within her direct knowledge when that was not the case. The inescapable conclusion to be drawn from all of this is that Ms West was willing to give the impression that Ms Mansfield was responsible for the expenses folder going missing and had asked Mr Peddel to burn important documents including expense claim forms even though she had no real basis for doing so. I regret to say that I found Ms West’s evidence to be generally unreliable.
ANOTHER WITNESS FOR THE CLAIMANT: OVERSTATING EVIDENCE UNDERMINES CREDIBILITY
Another witness for the claimants was found to have overstated the case, and thus undermined his credibility.
Mr Peddel was the only other witness to give evidence for the Defendants. Mr Peddel gave his evidence in a straightforward manner. However, some criticism was (rightly) made of his assertions about the Defendants’ attendance at work, given the nature of his own work which would take him out the office for significant periods. In addition, like Ms West, he seems to have relied on office gossip to an extent to make an allegation that Mr Malinsky shredded documents after an Inland Revenue inspection. However, unlike Ms West, he did not purport to speculate as to what those documents were. There were also some unnecessary aspersions as to Ms West’s character which were unsubstantiated. Overall, Mr Peddel, in seeking to be helpful to the Defendants may have overstated his evidence thereby undermining its reliability in parts. However, I do accept his evidence that he was not asked by Ms Mansfield to burn documents and that he did not do so. It seems to me that the Claimants’ allegation that documents, and in particular expense forms, may have been burned or destroyed as a result of the Defendants’ actions is undermined by the fact that a selection of them were eventually disclosed.
NO DRAWING OF ADVERSE INFERENCES FROM MISSING WITNESSES
The court had imposed an upper limit of five witnesses for each party.
Missing Witnesses and Documents
Ms Anna Boase, for the Claimants, invites me to draw an adverse inference from the fact that the Defendants did not call Mr Ward or Mr Segev to give evidence. Furthermore, I am invited to draw an inference from the fact that documents were deleted by the Defendants. On the question of witnesses, I do not consider that it would be fair in all the circumstances of this case to draw any adverse inference from the fact that certain witnesses have not been called:
i) Whilst Ms Boase criticises the Defendants for calling two witnesses (Ms Davidson and Mr Di Lorenzo) whose evidence is described as anodyne, the Defendants would not necessarily have been in a position to anticipate prior to exchange that the Claimants would regard the evidence as such. The Defendants did then attempt to call two further witnesses in substitution for Ms Davidson and Mr Di Lorenzo but, for reasons explained above, were refused permission to do so. It is not clear whether Mr Ward or Mr Segev were the intended stand-ins, but it is possible that the Defendants would have called one or both of them;
ii) The Court is not bound to draw an inference in these circumstances. It may do so where the role of the absent witness is “absolutely central to what the Court had to decide“: See Manzi v King’s College Hospital NHS Foundation Trust  EWHC 1101 (QB) at . Whilst Mr Ward and Mr Segev could have given some relevant evidence it would be difficult to describe such evidence as being “absolutely central” to the issues which the Court must decide;
iii) But in any event, an important and relevant factor to take into account here is the Court-imposed limit on the number of witnesses. There may be any number of reasons why, in the face of such a limit, some witnesses were or had to be prioritised over others. It would not be appropriate to infer that the reasons for not prioritising Mr Ward or Mr Segev were necessarily because of a lack of confidence as to the evidence that those witnesses might have given. Such an inference might be more appropriate where a party has free rein to call a larger number of witnesses, but that is not the case here;
iv) The Defendants have served hearsay evidence notices in respect of the two witnesses concerned. The position is therefore quite removed from the case where a party has failed to adduce any evidence from an absent witness.
Mr Sisley makes a similar criticism of the Claimants and the absence of Mr Malinsky. However, for similar reasons as in the preceding paragraph (save for the fact that there is no hearsay notice or statement in respect of Mr Malinksy), I do not consider it appropriate in the circumstances of this case to draw any adverse inference from his absence either.”
THE “PROVING THINGS”: SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
Source of information and belief
- Witness statements & sources of information and belief: 10 key points.
- Witness statements giving the source of information and belief: a rule overlooked at your peril.
Drafting witness statements
- Witness statements cannot replace pleadings and “cut and paste” witness statements are unlikely to impress.
- A basic thing that anyone preparing a witness statement should know: the difference between fact and opinion.
- Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).
- Good bundles, good advocacy, poor witness statements
- The witness who knows nothing and wants to be an expert: a review of the cases
- Witnesses who did not draft (their statements), would be “experts” and other witness woes
Adverse inferences from silence/absent witnesses
- Absent doctor does not lead to an adverse inference.
- Adverse inferences from missing documents and witnesses: another case to point.
- More on adverse inferences from absent witnesses: a clinical negligence case.
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- My article in The Local Government Lawyer “Silence is not necessarily golden”.
- Gordon Ramsay and witness evidence: absence of key witnesses does not lead to turning up of the heat
- Inferences to be drawn from silence: the views of the Supreme Court
- Absent witnesses are not necessarily decisive: Western Trading considered
- A failure to disclose can be just as telling as disclosure itself.